JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
8 May 2024 (*)
(Civil service – ECB staff – Remuneration – Daily subsistence allowance – Refusal to grant the daily subsistence allowance – Articles 4.1.1 and 4.5.1 of the ECB Staff Rules – Legal certainty – Legitimate expectations – Duty to have regard for the welfare of officials – Responsibility)
In Case T‑124/23,
VB, represented by L. Levi and A. Champetier, lawyers,
applicant,
v
European Central Bank (ECB), represented by D. Camilleri Podestà and D. Nessaf, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and T. Pynnä, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By his action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicant, VB, seeks, first, annulment of the decision of the European Central Bank (ECB) of 4 April 2022 rejecting his request to receive the daily subsistence allowance (‘the contested decision’) and, secondly, compensation for the damage which he claims to have suffered as a result of that decision.
Background to the dispute
2 The applicant concluded a fixed-term contract with the ECB for the period from 1 July 2021 to 30 June 2024, subject to a probationary period of six months, expiring on 31 December 2021.
3 On 29 October 2021, the applicant received an email from the functional mailbox ‘HR Operations Notifications’ (‘the email of 29 October 2021’), according to which:
‘Based on the information available … we identified you as potentially eligible to benefits on appointment, as you are currently residing outside Germany and you started your employment with the ECB during the COVID-19 pandemic. With this email we inform you of the applicable process and deadline for benefits on appointment.
Benefits on appointment are strictly linked to a relocation to Frankfurt [am Main (Germany); “Frankfurt”] (or surrounding areas) to take up appointment at the ECB. The ECB Staff Rules contain the provision to claim benefits on appointment within one year after completion of their probationary period. Nevertheless, we consider that the purpose of the benefits remains, even if the date of the relocation is far removed from the date of the start of the appointment. That means you remain eligible (provided all other applicable criteria are fulfilled) to the benefits on appointment, if you settle in Frankfurt (or surrounding areas) within six months after 1 February 2022.
In particular:
…
Subsistence allowance: will apply, provided the relocation to a temporary accommodation in Frankfurt (or surrounding areas) will take place during your probationary period and at the latest by 1 February 2022.
Please be informed that the information above focuses only on the applicable deadlines. Other eligibility criteria that must be fulfilled remain unchanged.
If applicable, please approach [the administration] and inform them about your individual situation. Your circumstances will be carefully assessed and [the administration] will reply in a timely manner.’
4 On 17 December 2021, the applicant received a second email from the functional mailbox ‘HR Operations Notifications’ (‘the email of 17 December 2021), according to which:
‘In light of the worsened COVID pandemic situation and the mandatory remote work until 21 March 2022, we inform you that while you are required to relocate to Germany (close to Frankfurt) at the first possible occasion, the relocation will become mandatory as of the new date for the return to office, that is on 21 March 2022.
This email replaces our previous email [of 29 October 2021].
…
If applicable, please approach [the administration] and inform them about your individual situation. Your circumstances will be carefully assessed and [the administration] will reply in a timely manner.’
5 In reply to an email from the applicant of 18 March 2022, the ECB informed the applicant that, ‘as regards the subsistence allowance, colleagues who are not anymore in the probationary period are not eligible to receive it[;] I believe we have communicated to you this information in the initial e-mail on 29 October 2021’.
6 On 21 March 2022, the applicant relocated to Frankfurt (Germany) for the first time. By email of 1 April 2022, he submitted his request to receive the daily subsistence allowance.
7 By the contested decision, the ECB rejected the applicant’s request for the grant of the daily subsistence allowance on the ground that his probationary period had already elapsed.
8 On 2 June 2022, the applicant requested an administrative review of that decision, which was rejected by decision of 2 August 2022 (‘the decision rejecting the request for administrative review’).
9 On 30 September 2022, the applicant submitted a request for a grievance procedure under Article 41 of the Conditions of Employment for Staff of the ECB (‘the Conditions of Employment’) and Articles 8.1.4 and 8.1.5 of the Staff Rules (‘the Staff Rules’) against the decision rejecting the request for administrative review.
10 By decision of 19 December 2022, the ECB rejected that grievance (‘the decision rejecting the grievance’).
Forms of order sought
11 The applicant claims, in essence, that the Court should:
– annul the contested decision;
– annul the decision rejecting the request for administrative review;
– annul the decision rejecting the grievance;
– order the ECB to compensate the material damage suffered and to pay the symbolic amount of one euro in compensation for the non-material harm suffered;
– order the ECB to pay the costs.
12 The ECB contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
13 The applicant has submitted a claim for annulment and for damages.
The claim for annulment
The subject matter of the application for annulment
14 The applicant seeks annulment of both the decision rejecting the request for administrative review and the decision rejecting the grievance and of the contested decision, in so far as he was not granted the daily subsistence allowance.
15 It should be recalled that a claim for annulment formally directed against the decision rejecting the grievance has the effect of bringing before the Court the act against which the grievance was submitted, where that claim, as such, lacks any independent content (see judgment of 30 June 2021, GY v ECB, T‑746/19, not published, EU:T:2021:390, paragraph 18 and the case-law cited).
16 In the present case, given that the decisions rejecting the applicant’s request for administrative review and the decision rejecting the grievance merely confirm the contested decision, the Court finds that the heads of claim seeking annulment of those first two decisions lack any independent content and that there is therefore no need to rule on them specifically, even though, when assessing the legality of the contested act, it will be necessary to take into consideration the reasons given in those decisions, since those reasons are also deemed to cover the contested decision (see judgment of 30 June 2021, GY v ECB, T‑746/19, not published, EU:T:2021:390, paragraph 19 and the case-law cited).
Admissibility of the evidence submitted by the applicant in the context of his position on the holding of a hearing
17 By document lodged at the Registry of the General Court on 21 September 2023, that is to say, after the second exchange of pleadings, the applicant stated that he was not requesting that a hearing be held, while producing new evidence in support of his claim for annulment.
18 In that regard, it must be borne in mind that, under Article 85(3) of the Rules of Procedure of the General Court, ‘the main parties may … produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified’.
19 The evidence produced by the applicant, however, all predates the application, lodged at the Court Registry on 28 February 2023, and the applicant does not claim that that evidence came to his knowledge after the application was lodged. In addition, the applicant does not state the reasons that prevented him from producing that evidence prior to that, when it could already have been produced when the application was lodged. That evidence must, therefore, be rejected as inadmissible.
Substance
20 In support of his claim for annulment, the applicant relies on three pleas in law, the first alleging infringement of Articles 4.1.1 and 4.5.1 of the Staff Rules, the second alleging infringement of the principle of the protection of legitimate expectations and the third alleging breach of the duty to have regard for the welfare of officials.
– The first plea in law, alleging infringement of Articles 4.1.1 and 4.5.1 of the Staff Rules
21 The applicant submits that the only time limit to be complied with in order to receive the daily subsistence allowance is that referred to in Article 4.1.1 of the Staff Rules, namely that members of staff must claim their benefits on appointment within one year after completion of their probationary period. He claims that he complied with that time limit. Nevertheless, the applicant concedes that it can be argued that that provision refers only to the period within which a request for the daily subsistence allowance must be submitted.
22 Moreover, there is no text or information provided by the ECB which states that the daily subsistence allowance would be granted only if the relocation to Frankfurt took place during the probationary period. The applicant emphasises that, apart from the fact that it was no longer in force at the material time, Decision ECB/2007/NP5 of the ECB of 25 May 2007, relied on by the ECB in its defence, is unclear.
23 In addition, the applicant considers that the purpose of the daily subsistence allowance is not clear from Articles 4.5.1 and 4.5.3 of the Staff Rules. He also argues that maintaining accommodation for a short period in the country of employment could exceed the duration of the probationary period and that no explicit time limit for relocation is provided for in the Staff Rules or in the Conditions of Employment. Furthermore, the applicant draws attention to the fact that an appointment might not be subject to a probationary period and that there is therefore no strict conditional link between the application of a probationary period and the entitlement to the daily subsistence allowance.
24 The applicant also claims that he was given clear instructions, in particular by the emails of 29 October and 17 December 2021, which stated that the daily subsistence allowance would apply provided that his relocation to a temporary accommodation in Frankfurt took place at the latest by 21 March 2022. That is indeed what occurred in the present case. Moreover, the email of 29 October 2021 draws no distinction between members of staff whose probationary period would end after 21 March 2022 and those whose probationary period would end before that date.
25 The applicant adds that it is true that, in the decision rejecting the request for administrative review, it is stated that the staff member’s precarious situation would end automatically upon completion of the probationary period. However, that reasoning applies only in respect of the legal framework instituted by the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), without the possibility of applying it to ECB staff in the context established by the Staff Rules and by the Conditions of Employment. Article 4.1.1 of the Staff Rules provides that members of staff are to claim their benefits on appointment within one year after completion of their probationary period, such that the daily subsistence allowance must be paid if the relocation to Frankfurt took place during that period and if the staff member has maintained two households. The applicant claims that he complied with those two conditions upon completion of his probationary period. In addition, the staff were requested to work remotely and were given the possibility of doing so from locations other than their place of residence or temporary accommodation. Accordingly, staff members were allowed to relocate less quickly to Frankfurt.
26 The ECB disputes the applicant’s arguments.
27 In that regard, it should be borne in mind that, under Article 4.5.1 of the Staff Rules:
‘Members of staff shall be entitled to a subsistence allowance if they provide evidence that they have moved into temporary residence at the place of employment whilst maintaining temporarily also their previous residence either at the place of recruitment, previous employment or in their country of origin.
…
The maximum period of entitlement to the subsistence allowance, which accrues on a daily basis, shall be three months.’
28 In addition, it is apparent from Article 22 of the Conditions of Employment that benefits on appointment are conditional on relocation to the place of employment in order to take up appointment at the ECB. That rule was restated in the email of 29 October 2021.
29 Article 4.5.3 of the Staff Rules provides that, ‘subject to Article 4.5.1, a provisional payment equal to the standard subsistence allowance shall be paid as a lump sum with the second monthly salary’.
30 What is more, under Article 4.5.4 of the Staff Rules, ‘members of staff who have received the provisional payment and before the completion of the [three-month] period referred to in Article 4.5.1 (i) settled at their permanent place of residence …, shall refund part of the provisional payment in proportion to the unexpired portion of that [three-month] period’.
31 It is apparent from those provisions that the daily subsistence allowance covers the period of the first three months following the appointment to the ECB provided that, first, in accordance with Article 4.5.1 of the Staff Rules, the new member of staff of that institution has relocated temporarily to the place of employment while temporarily retaining his or her previous residence and, secondly, in accordance with Article 4.5.4 of those Staff Rules, that member of staff does not settle in permanent accommodation during that period, failing which he or she will have to refund part of the allowance, received with the second monthly salary after appointment, in proportion to the unexpired portion of that three-month period.
32 Additionally, according to recital 3 of Decision ECB/2007/NP5, which introduced the current wording of Articles 4.5.1 to 4.5.5 of the Staff Rules, ‘the subsistence allowance structure needs to be revised so that it provides for an upfront provisional payment of the standard subsistence allowance if the member of staff is able to demonstrate that they incur costs and inconvenience due to the maintenance of two households on a temporary basis during a period of uncertainty deemed to consist of the first three months of employment at the ECB’. In that regard, the ECB states that, until 1 June 2007, the date on which that decision entered into force, the probationary period at the ECB was three months, which explains the reference to the three-month period in that recital.
33 It is true that, as the applicant notes, that decision, which made amendments to the former Staff Rules, is no longer in force following the adoption of Decision ECB/2016/NP1 of the ECB of 12 January 2016 adopting the new Staff Rules and, as is apparent from its first recital, which recast those rules.
34 However, in accordance with the case-law, the wording of a recital may cast light on the interpretation to be given to a legal rule or concept provided for in the act in which it is contained (see judgment of 18 May 2022, Wieland-Werke v Commission, T‑251/19, not published, EU:T:2022:296, paragraph 664 and the case-law cited). As the ECB states, Decision ECB/2016/NP1 in no way amended Articles 4.5.1 to 4.5.5 of the Staff Rules introduced by Decision ECB/2007/NP5, with the result that recital 3 of that latter decision constitutes a basis for interpreting those provisions of the Staff Rules.
35 Therefore, the applicant cannot validly call into question either the fact that the daily subsistence allowance is paid at the same time as the second monthly salary after appointment or the fact that that allowance is intended to cover the first three months after appointment.
36 Consequently, as is apparent from Article 4.5.1 of the Staff Rules and from Article 22 of the Conditions of Employment, in order to receive the daily subsistence allowance, the applicant should, inter alia, have relocated to his place of employment. In the present case, however, it is common ground that the applicant, having taken up his duties on 1 July 2021, relocated to Frankfurt only on 21 March 2022, that is to say, more than three months after his appointment and, therefore, after the period covered by the daily subsistence allowance and, accordingly, did not satisfy the conditions for the grant of that allowance.
37 However, in the present case, by reason of the COVID-19 pandemic and the mandatory remote work regime put in place by the ECB during that period, the ECB had, by email of 29 October 2021, exempted new members of its staff – the applicant among them – from the obligation to relocate to the place of employment to take up their appointment, giving them full discretion to decide on the date of their relocation until 1 February 2022. That measure was subsequently extended, by the email of 17 December 2021, until 21 March 2022.
38 As regards the grant of the daily subsistence allowance during the period of the COVID-19 pandemic, as is apparent from the email of 29 October 2021, that allowance was subject to the condition that the relocation to a temporary accommodation in Frankfurt or the surrounding areas take place during the ‘probationary period and no later than 1 February 2022’. Contrary to what the applicant claims, it follows from the conjunction ‘and’ that the time limits indicated in that email are cumulative conditions, such that the relocation to a temporary accommodation in Frankfurt was to take place during the probationary period, but not later than 1 February 2022, that period being subsequently extended until 21 March 2022.
39 It is common ground that the applicant relocated to Frankfurt on 21 March 2022. It follows that, even though the applicant observed the mandatory cut-off date for relocation, as indicated most recently in the email of 17 December 2021, he nevertheless relocated there after the expiry of his probationary period, on 31 December 2021. Therefore, the applicant did not satisfy the conditions laid down by the ECB relating to the exceptional extension of the time limits relating to the grant of the daily subsistence allowance at issue.
40 However, the applicant disputes the relevance of the conditional link between the expiry of the probationary period and the entitlement to the daily subsistence allowance.
41 In that regard, it should be borne in mind that, according to Article 9(c) of the Conditions of Employment, ‘in interpreting the rights and obligations under the … Conditions of Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of other [EU] institutions’. In addition, Article 9(a) of the Conditions of Employment provides that the Staff Rules are to specify further those Conditions of Employment.
42 It should also be noted that Article 10(1) of Annex VII to the Staff Regulations renders the grant of a daily subsistence allowance subject to the official at issue ‘furnish[ing] evidence that a change in the place of residence is required in order to comply with Article 20 of [those] Staff Regulations, [namely to reside either in the place where he or she is employed or at no greater distance therefrom than is compatible with the proper performance of his or her duties]’.
43 According to the case-law relating to Article 10 of Annex VII to the Staff Regulations, concerning the grant of the daily subsistence allowance, the member of staff concerned must relocate temporarily to his place of employment, whilst retaining, likewise temporarily, his or her previous residence (see, to that effect, judgments of 10 July 1992, Benzler v Commission, T‑63/91, EU:T:1992:88, paragraph 20, and of 19 June 2007, Asturias Cuerno v Commission, T‑473/04, EU:T:2007:184, paragraph 83).
44 It follows that Article 4.5.1 of the Staff Rules, the wording of which is reproduced in paragraph 27 above, and Article 10 of Annex VII to the Staff Regulations, as interpreted by the case-law, render the grant of the daily subsistence allowance subject to very similar conditions, that is to say, a temporary residence at the place of employment whilst maintaining temporarily also the previous residence, such that, in accordance with Article 9(c) of the Conditions of Employment, reproduced in paragraph 41 above, that provision of the Staff Rules may be interpreted in the light of the case-law relating to the abovementioned provision of the Staff Regulations.
45 In that regard, it should be borne in mind that, according to the case-law relating to Article 10 of Annex VII to the Staff Regulations, the objective of the daily subsistence allowance is to compensate for the expense and inconvenience occasioned, in particular, by the precarious situation of the person concerned during a probationary period, who is obliged to establish a temporary residence at his or her place of employment whilst retaining, likewise provisionally, his or her previous residence (order of 20 August 1998, Collins v Committee of the Regions, T‑132/97, EU:T:1998:193, paragraph 41; see also, to that effect, judgments of 12 December 1996, Lozano Palacios v Commission, T‑33/95, EU:T:1996:196, paragraphs 47 and 55, and of 2 May 2001, Cubeta v Commission, T‑104/00, EU:T:2001:127, paragraph 38).
46 The daily subsistence allowance is intended to offset the disadvantages stemming from the precarious situation of a probationary official (see, to that effect, judgment of 28 May 1998, Commission v Lozano Palacios, C‑62/97 P, EU:C:1998:266, paragraph 22). Thus, during the probationary period, during which the precariousness of the employment relationship persists, it seems reasonable to encourage the person concerned to refrain from transferring his or her residence permanently, which, in the event of his or her duties not being confirmed, would be premature (see, to that effect, judgment of 30 November 1993, Vienne v Parliament, T‑15/93, EU:T:1993:108, paragraph 34).
47 Lastly, the justification for the daily subsistence allowance lies, in particular, in the official’s obligation to relocate to a residence other than that which he or she occupied previously, without however being able to give up the latter (see, to that effect, judgment of 10 July 1992, Benzler v Commission, T‑63/91, EU:T:1992:88, paragraph 21; see also, by analogy, judgment of 30 January 1974, Louwage v Commission, 148/73, EU:C:1974:7, paragraph 25).
48 It follows that, by establishing rules more favourable to its staff on account of the COVID-19 pandemic relating to the grant of the daily subsistence allowance, conditional upon, inter alia, temporary relocation to the place of employment during the probationary period, the ECB did not disregard the objective of that allowance, namely to offset the disadvantages stemming from the precarious situation of a member of its staff during a precarious period such as the probationary period (see, to that effect, judgment of 28 May 1998, Commission v Lozano Palacios, C‑62/97 P, EU:C:1998:266, paragraph 22).
49 Thus, it must be held that, at the time of his relocation, on 21 March 2022, the applicant was not in a precarious situation, such that, first, he was no longer encouraged to relocate temporarily to Frankfurt because of the precarious nature of his situation and, secondly, in view of the confirmation of his duties at the end of the probationary period on 31 December 2021 – and he has not claimed otherwise – he was no longer obliged to retain his former residence in his country of origin or, at the very least, was not prevented from giving up that residence.
50 Therefore, it must be concluded that, on the date of his relocation, the applicant did not satisfy the conditions laid down in Article 4.5.1 of the Staff Rules, read in the light of the emails of 29 October and 17 December 2021, with the result that the grant of the daily subsistence allowance on the date of his relocation was not justified in his regard.
51 Moreover, it should be noted that Article 4.1.1 of the Staff Rules, in the section entitled ‘General principles’ relating to the benefits on appointment, provides that ‘members of staff shall claim their benefits on appointment within one year after completion of their probationary period.’ It follows that that provision contains – which the applicant has not, moreover, ruled out – a procedural rule which refers to the time limit within which a request for the grant of benefits on appointment must be submitted. On the other hand, the substantive conditions to which the grant of the daily subsistence allowance is subject are set out in Section 4.5 of the Staff Rules, entitled ‘Subsistence allowance’. Therefore, the arguments of the applicant based on Article 4.1.1 of the Staff Rules, according to which the time limit laid down in that article is the only period to be met for the purpose of granting the daily subsistence allowance, must be rejected.
52 Furthermore, the applicant cannot rely on the assumption that the maintenance of a temporary accommodation in the country of employment could exceed the probationary period. First, such a circumstance cannot justify maintaining a residence in the country of origin beyond the precarious period of his employment. Secondly, the applicant has not shown that that assumption materialised in the present case.
53 In addition, as regards the fact that, in accordance with Article 2.1.1 of the Staff Rules, an appointment might not be subject to a probationary period, it is common ground that, in the present case, the applicant was subject to such a period, meaning that that argument cannot succeed. In any event, the existence of such a possibility does not call into question the conclusion drawn in paragraph 50 above.
54 As regards the argument based on the fact that the applicant allegedly received clear instructions, set out in particular in the emails of 29 October and 17 December 2021, and according to which the daily subsistence allowance applied, provided that his relocation to a temporary accommodation in his place of employment had taken place at the latest on 21 March 2022, it is appropriate to examine it in the context of the second plea in law, alleging infringement of the principle of the protection of legitimate expectations.
55 In the light of the foregoing, the first plea in law must be rejected.
– The second plea in law, alleging infringement of the principle of the protection of legitimate expectations
56 The applicant submits that he received clear and consistent assurances which gave rise to a legitimate expectation as regards the entitlement to the daily subsistence allowance at issue.
57 According to the applicant, those assurances were mainly given by means of the emails of 29 October and 17 December 2021.
58 The applicant relies also on Article 4.1.1 of the Staff Rules and on the fact that Article 4.5.1 of those Staff Rules does not relate to the period during which transfer of the place of residence to the place of employment must take place.
59 The ECB disputes the applicant’s arguments.
60 In that regard, it should be recalled that, according to settled case-law, the right to rely on the principle of protection of legitimate expectations extends to any person in a situation in which an EU institution has caused that person to entertain expectations which are justified by precise assurances provided to him or her. Regardless of the form in which it is communicated, precise, unconditional and consistent information which comes from an authorised and reliable source constitutes such assurances. By contrast, a person may not plead breach of that principle unless he or she has been given precise assurances by the authorities (see judgment of 4 May 2016, Andres and Others v ECB, T‑129/14 P, EU:T:2016:267, paragraph 41 and the case-law cited).
61 It also follows from the case-law that the assurances given by the administration must, in any event, comply with the provisions of the Staff Rules (see, by analogy, judgment of 28 February 2019, Pozza v Parliament, T‑216/18, not published, EU:T:2019:118, paragraph 88 and the case-law cited).
62 In the present case, first, the arguments based on Article 4.1.1 of the Staff Rules must be rejected for the reasons set out in paragraph 51 above.
63 Secondly, in accordance with the case-law cited in paragraph 61 above, the same is true of Article 4.5.1 of the Staff Rules relied on by the applicant, in so far as, in the context of the first plea in law, it has been concluded that, in the present case, on the date of his relocation, the applicant did not satisfy the conditions laid down by that provision.
64 Thirdly, as regards the emails of 29 October and 17 December 2021, first, as is apparent from paragraph 38 above, the applicant is not justified in claiming that those emails gave him the assurance that he could transfer his residence after the end of his probationary period.
65 In addition, both the email of 29 October 2021 and that of 17 December 2021, the relevant extracts of which are reproduced in paragraphs 3 and 4 above, contain only a general and preliminary analysis of the situation of their addressees, inviting the persons concerned ‘if applicable, [to] approach [the administration] and inform them about [their] individual situation’ and stating that their ‘circumstances will be carefully assessed’. It follows that the two emails are of a rather general nature and do not include a precise examination of the individual situation of their addressees, such that it is impossible for the applicant to see in them precise, unconditional and consistent information relating to his individual situation.
66 Consequently, in the light of the case-law cited in paragraph 60 above, it must be concluded that neither the Staff Rules nor the emails of 29 October and 17 December 2021 constitute precise assurances – namely precise, unconditional and consistent information from the ECB – pursuant to which the applicant was entitled to the daily subsistence allowance, with the result that the applicant has not demonstrated that the principle of the protection of legitimate expectations has been infringed in his regard.
67 In the light of the foregoing, the second plea in law must be rejected.
– The third plea in law, alleging breach of the duty to have regard for the welfare of officials
68 The applicant submits that the contested decision is in breach of the duty to have regard for the welfare of officials incumbent on the administration.
69 The applicant claims that he acted in good faith and that he should not be penalised on account of the inconsistency of the communications sent by the ECB, namely the emails of 29 October and 17 December 2021, in particular in the light of his personal situation. It is apparent from those emails that the daily subsistence allowance was not linked to a condition of relocation during the probationary period. In addition, the applicant should not be required to know the case-law to which the ECB referred imprecisely.
70 The applicant also adds that, in the decision rejecting the request for administrative review, the ECB acknowledged that communication from the human resources department had not always been perfectly clear.
71 The applicant points to alleged inconsistencies in the ECB’s communications, in particular with regard to the possibility of travelling to Frankfurt in the context of the COVID-19 pandemic and of working remotely without travelling to the ECB’s premises.
72 The ECB disputes the applicant’s arguments.
73 In that regard, it should be borne in mind that, according to the case-law, by analogy with the situation of officials and staff of other institutions, the duty to have regard for the welfare of officials reflects the balance of reciprocal rights and obligations established by the Conditions of Employment and the rules applicable to staff in the relationship between the official authority and the civil servants, which implies in particular that, when deciding on the situation of an official, the authority takes into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service, but also those of the individual concerned (see judgment of 23 September 2020, Bax v ECB, T‑433/18, not published, EU:T:2020:418, paragraph 132 and the case-law cited).
74 However, the protection of the rights and interests of permanent members of staff must always be limited by compliance with the rules in force (see judgment of 23 September 2020, Bax v ECB, T‑433/18, not published, EU:T:2020:418, paragraph 134 and the case-law cited).
75 In the present case, in the context of the analysis of the first plea, it has been concluded that, in this instance, on the date of his relocation, the applicant did not satisfy the conditions laid down in Article 4.5.1 of the Staff Rules. Therefore, in accordance with the case-law cited in paragraph 74 above, the applicant cannot rely on the ECB’s duty to have regard for the welfare of officials in order to receive that allowance in breach of Article 4.5.1 of the Staff Rules.
76 Moreover, as is apparent from paragraphs 64 and 65 above, the email of 29 October 2021, first, states that, in order to receive the daily subsistence allowance, the relocation to a temporary accommodation in the place of employment, namely, in the present case, in Frankfurt, must take place during the probationary period and, secondly, does not contain any precise examination of the applicant’s individual situation.
77 In addition, according to settled case-law, any member of staff of normal diligence is deemed to be familiar with the Staff Rules and, in particular, the rules governing his or her remuneration (see, by analogy, judgment of 17 March 2021, EJ v EIB, T‑585/19, not published, EU:T:2021:142, paragraph 53 and the case-law cited). In any event, even if, as the applicant maintains, the emails of 29 October and 17 December 2021 were not clear and consistent, it was open to him – as he was invited to do in those emails, the wording of which is reproduced in paragraphs 3 and 4 above – to contact the administration in order to enquire about his individual situation with regard to the daily subsistence allowance. It is apparent from the file, however, that the applicant did not contact the administration in that regard until 14 March 2022, that is to say, one week before his relocation to Frankfurt.
78 Furthermore, the applicant has not adduced evidence capable of demonstrating that he was not able to relocate to Frankfurt before 21 March 2022, because of the COVID-19 pandemic, or that he had warned the ECB in that regard. In any event, that finding does not call into question the fact that the applicant has not demonstrated that he satisfied the conditions for the grant of the daily subsistence allowance at issue and that he had incurred costs which that allowance is intended to cover. In addition, it should be pointed out that the applicant was not penalised for not moving to Frankfurt before the lifting of the restrictions on attendance at the ECB premises, that is to say, on 21 March 2022. The ECB only refused to grant him the daily subsistence allowance, the grant of which was no longer justified at the time of that relocation.
79 In the light of the foregoing, the third plea in law must be rejected.
80 Consequently, the claim for annulment must be rejected.
Claim for damages
81 By his claim for damages, the applicant claims, first, the sum of EUR 9 270, corresponding to the daily subsistence allowance for the three-month period, together with interest calculated at the applicable rate of interest and, secondly, a symbolic amount of one euro for the non-material damage which he claims to have suffered.
82 In that regard, it must be borne in mind that, in accordance with settled case-law in civil service matters, where an application for compensation is closely related to an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for compensation (see judgment of 14 December 2022, TM v ECB, T‑440/21, not published, EU:T:2022:800, paragraph 170 and the case-law cited).
83 In the present case, as regards the material damage allegedly suffered, the claim for compensation is closely related to the claim for annulment, since that damage has its origin in the rejection of the application for the daily subsistence allowance.
84 As regards the non-material damage allegedly suffered, in support of his claim for damages, the applicant does not rely on illegalities other than those referred to in the pleas supporting his claim for annulment.
85 There is therefore a close relationship between the claim for annulment and the claim for damages. It follows that, the first head of claim having been rejected, the latter must also be rejected.
86 Accordingly, the action must be dismissed in its entirety.
Costs
87 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
88 Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the ECB.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders VB to pay the costs.
da Silva Passos | Półtorak | Pynnä |
Delivered in open court in Luxembourg on 8 May 2024.
V. Di Bucci | | S. Papasavvas |